December 1966

PRIVATE LAW PRACTICE BY FORMER COUNTY JUDGE. It is unethical for a former County Judge to represent the State and County in appeals from the awards of Special Commissioners in condemnation suits when the condemnation proceedings originated during his tenure as County Judge and he appointed the Special Commissioners.

Canon 33.


Can a former County Judge represent the State and County in highway condemnation suits in which Special Commissioners were appointed and appeals perfected from their awards during the former Judge's term of office?


Canon 33 contains two express prohibitions and a general statement of policy. The prohibitions are (1) that an attorney shall not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity, and (2) that an attorney shall not accept employment in connection with any matter which he has investigated or passed upon while in public office, adverse to the interest represented by him while in public office. The general policy provision is that a public officer should endeavor to discharge his official duties so that his employment (with respect to those matters) after the expiration of his term of office should be unnecessary.

It seems clear that the second prohibition is not involved in the present case since the attorney's employment would not be "ad verse" to any matter previously acted upon by him in his capacity as County Judge. It is a close question whether the actions of the Judge were in a strict sense "upon the merits" of the condemnation cases but the procedural matters upon which he did act may well be involved in the ultimate disposition of the cases and we therefore hold that his employment would violate the spirit, if not the letter, of the first prohibition. It is further our opinion that the general statement of policy as contained in the last sentence of
Canon 33 is sufficiently broad to prohibit the employment.

The specific questions here presented have not been previously decided but, as this Committee said in Opinion 173 (March, 1968):

"Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice."

The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind. (8-0.)